X. PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES (809-47, 865-892, 892-909)

Question 1

Easement

Answer 1

Grant of an interest in land that entitles a person to use land possessed by another

Question 2

Is an easement possessory or non-possessory?

Answer 2

non-possessory because the servant estate still owns the land, the burden passes to subsequent owners of the servient land, and the owner of an easement has rights against all successors of the grantor of the easement

Question 3

Must an easement be in writing?

Answer 3

usually but it can be created by implication or prescription

Question 4

Affirmative easement

Answer 4

owner of the easement (dominant estate) has the right to go onto the land of another (servient estate) and do some act on the land

Question 5

negative easement

Answer 5

owner of easement can prevent owner of servient land from doing some act on servant land that might harm neighbor

Question 6

easement appurtenant

Answer 6

“belonging to”; easement gives owner use of another tract of land

Question 7

dominant v servient tenement

Answer 7

benefited land is dominant tenement and the burdened land is the servient tenement

Question 8

Does the law generally prefer easement in gross or easement appurtenant?

Answer 8

Generally, easement appurtenant is preferred by the law because it increases the property value (benefit outweighs burden), whereas easement in gross is personal so burden outweighs benefit (since land value does not capture benefit)

Question 9

Easement in gross

Answer 9

gives owner the right to use the servient land, easement is personal; bc it does not benefit any land, it only involves a servient estate

Question 10

Profit a Prendre

Answer 10

Right to take something off another person’s land that is part of the land or a product of the land

Question 11

Is a license an interest in land?

Answer 11

No, therefore it can be either oral or in writing

Question 12

How can a license become irrevocable?

Answer 12

o License coupled with an interest: A license coupled with an interest that allows the licensee the right to remove property of the licensee which is on the licensor’s land cannot be revoked. (E.g. O sells A a car located on O’s land, A has irrevocable license to enter and remove the car.)
o Estoppel: If licensee has constructed substantial improvements on either the licensor’s land or the licensee’s land, relying on the license, licensor is estopped from revoking the license (see Holbrook v. Taylor)

Question 13

Ways to create an easement?

Answer 13

1. express grant
2. reservation
3. implication - implied from existing use or easement by necessity
4. estoppel - created out of license, transfers right w/o compensation
5. prescription - through adverse use

Question 14

Willard v. First Church of Christ, Scientist

Answer 14

Holding: one can reserve interest to third party, but one cannot accept an interest in favor of third party (Minority view). Court must look balance equitable and policy considerations, which would support looking at the grantor’s intent.

Facts: O intended to convey her property with a reservation of an easement in favor of the church, allowing them to park there on church days. The lower court thwarted this intention, because it invalidated the common law rule that one cannot “reserve” an interest in property in favor of a third party.

Question 15

Holbrook v. Taylor

Answer 15

always bailing out Taylor

Holding: court holds Taylor(π) has easement by estoppel; Holbrooks cannot revoke license to use the land after Taylor has erected improvements at considerable expense

Facts: In 1942 the Holbrooks purchased their property and in 1944 they gave permission for a road to be cut for the purpose of moving coal from a newly opened mine. The road was used for various purposes until 1965 but always by permission of the Holbrooks. Taylors then used the road during the time their house was built, and made some improvements of the road after Holbrook gave him permission, amounting to $500. The Taylors claimed a right to the roadway by prescription and estoppel.

Question 16

Van Sandt v. Royster

Answer 16

Sand-sewer

Holding: π should have noticed that there was sewage system under his land that ran to neighboring land; upon reasonable inspection, easement should have been apparent.

(sewer case) π claims easement was never created, and even assuming there was an easement, he was a BFP who had no notice of the easement (wasn’t recorded in the deed), and therefore took the land free from burden of the easement. ∆s claim that easement was created by implied reservation upon severance of servient estate from dominant estate in deed from Bailey to Jones, and there is a valid easement by prescription.

Question 17

Othen v. Rosier

Answer 17

Othenk gawd I got my license.

In order to create an easement by necessity, the necessity must have existed at the time that the estate was created (held: no necessity at the time the estate was created, so no easement by necessity)
In order to create prescriptive easement, must be continuous and uninterrupted use in satisfaction of statutory requirements of AP (held: no easement by prescription because not used under claim of right)
Held: just a license which could not ripen into prescriptive right

Question 18

general rule for the scope of easements

Answer 18

intent of the parties defines the scope

Question 19

Brown v. Voss

Answer 19

BVoss never follows the rules, always takes it easy-easement

Holding: Notwithstanding CL rule, π should be allowed access to nondominant parcel because this will not cause much (or any) hardship to ∆s (Doctrine of balancing equities for an injunction favors this result)

CL rule: Easement appurtenant to one parcel of land may not be extended by owner of dominant estate to other parcels owned by him, to which easement is not also appurtenant; this constitutes a misuse of the land, which would be trespass.

Question 20

Termination of easements

Answer 20

o Release: easement owner releases the easement; normally release requires writing because easements are interests in property, subject to Statute of Frauds.
o Estoppel: servient owner reasonably relies upon oral statement or representation by easement owner to release him from the easement.
o Expiration: if duration of easement is limited in some way (e.g. defeasible easement is terminated when given event happens; easement by necessity is terminated when necessity ends)
o Merger / Unity of Title: easement owner becomes owner of servient estate.
o Abandonment: mere non-use by easement owner does not constitute abandonment; however if the owner of an easement acts in such a way as to indicate an unequivocal intent to abandon the easement then the easement is abandoned.
o Condemnation: government uses eminent domain power to take easement.
o Alteration of Dominant Tenement: If an easement is granted for a particular person and the alteration makes it impossible to achieve that purpose any longer, the easement is extinguished.
o Prescription: servient owner prevents easement from being used for prescriptive period.

Question 21

Preseault v. United States

Answer 21

Holding: either abandonment or scope of easement claims constitute a second taking (either by abandonment and then re-taking, or by exceeding scope of original easement and taking of 2nd easement for new use)

Facts: πs claim federal government took their property when it authorized conversion of former railroad right-of-way to public trail use (action amounted to a taking); either scope of easement was exceeded or easements were terminated by abandonment prior to government’s building of public trails (and therefore building of trails constituted a second taking)

Question 22

negative easements

Answer 22

right of dominant owner to stop servient owner from doing something on the servient land

Question 23

4 negative easements recognized by England

Answer 23

light, air, subjacent and lateral support, flow of water in artificial stream

Question 24

Doctrine of Ancient Lights

Answer 24

If a person’s windows had not been blocked by a neighbor for 20 years then he received a prescriptive easement for light over neighbors land.

Question 25

Are solar easements, scenic easements, and conservation easements recognized as new negative easements?

Answer 25

Yes, in some U.S. jnxs

Question 26

money damages in ____

Answer 26

law

Question 27

injunction in ____

Answer 27

equity

Question 28

real covenant

Answer 28

covenant that runs with the estate in land at law

Question 29

What type of relief can you get from a real covenant?

Answer 29

money damages

Question 30

Equitable servitude

Answer 30

covenant that attaches itself to the land and is enforceable at equity (injunction or specific performance)

Question 31

Can a real covenant arise by prescription or be implied?

Answer 31

NO

Question 32

requirements for burden to run at law (servient tenement)

Answer 32

intent

horizontal privity

vertical privity

touch and concern

Notice: subsequent purchaser must have notice of the covenant; lack of notice protects only BFP

Question 33

Requirements for benefit to run at law (dominant tenement)

Answer 33

intent

vertical privity - benefit runs to assignees of any interest in the land

touch and concern

Question 34

Tulk v. Moxhay

Answer 34

Moxy’s got equity that runs with the land ;)

Holding: Chancellor deemed it inequitable that a covenant should be unenforceable against a subsequent purchaser where the purchaser acquired land with knowledge of the restriction. Chancellor uses equity and says equity runs with the land.

Facts: This is the famous English case in which equitable servitudes originated. Tulk conveyed land to Elmes with covenant prohibiting him and his heirs and assigns from building on it; land eventually was transferred to defendant who had notice of the covenant. Tulk wanted an injunction against Moxhay from building on land, and Moxhay claimed that the covenant does not run with the land (no privity.)

Question 35

Is equitable or legal relief preferable for covenants?

Answer 35

It is much easier to get equitable relief than legal relief because fewer requirements to show privity of estate; also, plaintiffs would much rather have injunctions (so neighbor can’t build on land); furthermore, damages could exceed value of land (and equitable relief usually says land is maximum value that can be charged)

Question 36

Can a real covenant or an equitable servitude be implied in equity under certain circumstances?

Answer 36

Unlike a real covenant, an equitable servitude can be implied in equity under certain limited circumstances (usually writing is still required); however it cannot be obtained by prescription!

Question 37

Sanborn v. McLean

Answer 37

Lean cuisines at the gas station.

Holding: Where a purchaser buys a lot restricted to residential use and relies on the promise of the sub-divider to restrict the other lots and makes a substantial investment, the sub-divider and any other assigns are stopped from pleading the Statute of Frauds

Defendants wish to build a gas station on their lot in a neighborhood, claiming there is no written restriction in their deed and they had no notice of such a restriction; plaintiffs claim defendants’ lot is subject to reciprocal negative easement (really mean servitude) which prohibits this use of land. 53 of 91 deeds have covenants; common owner files plat (map) of subdivision and deeds 10 lots with covenants in 1892 and 11 with covenants in 1893; then deeds lot 86 to someone with no covenant and McLean succeeds to this title.

Question 38

Termination of Covenants

Answer 38

(1) Release: same as for easements
(2) Acquiescence / Waiver: arises when a claimant has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the defendant.
(3) Abandonment: resembles acquiescence but it makes the servitude unenforceable as to the entire parcel rather than only as to the plaintiff immediately involved.
(4) Merger: if the benefit and burden come in the hands of one person, the covenant ceases to exist.
(5) Estoppel: same as for easements
(6) “Unclean Hands” defense: court won’t enforce if P also previously violated the covenant.
(7) Changed Conditions: The character of the neighborhood has so changed that it is impossible any longer to secure in substantial decree the benefits of restrictive covenants.
(8) Eminent Domain: Although majority rule is that the government must pay damages to the owner of the benefited land.

Question 39

Western Land Co. v. Truskolaski

Answer 39

No to WLCo.

Covenants will still be enforced when the original purpose of the covenants can still be accomplished and they are of substantial value to landowners, even if property is more valuable for other purposes.

restricted whole lot to homes, now wants to get out of it with changed circumstances, but not allowed efficient breach! Court gives broad injunction to all benefited parcels basically (NOT damages, although theoretically could have)

Question 40

Rick v. West

Answer 40

old lady wild wild west

Holding: defendant has right to rely on restrictions; it does not matter that everyone else has waived them or that land would have more value if put to alternative use

original subdivider restricted lots to single-family dwelling; plaintiff now owns property and wishes to sell parcel to hospital (area had been rezoned for industrial use), but defendant refuses to waive covenant; plaintiff claimed covenant was no longer enforceable because conditions had changed.

Question 41

Regrant theory

Answer 41

An easement reserved by the grantor is not a reservation at all (would be void), but a regrant of an easement by the grantee to the grantor.

Question 42

Incorporeal hereditaments

Answer 42

a euphonious collective name for certain intangible rights that as the term “hereditament” indicates, descended as a real property to the primogenitary heir.